The Senate is back in session and is poised to continue its historic pace of confirming President Joe Biden’s judicial nominees. The Senate has confirmed 140 Article III judges—more than any other president in this century at this same point in their presidency.
This has been no small feat. For the first two years of the Biden administration, the Senate was evenly divided at 50-50. The absence of a single Democratic senator was enough to delay consideration of a judicial nominee. Senator Chuck Schumer (D-N.Y.) has also had to jump through various procedural hurdles that require time consuming roll call votes and bog down the process. The New York Times was right to call the Senate a “judicial confirmation factory.” Given all that, it’s hard for progressives to complain about the job the White House and Senate have done so far.
Except this: The Senate is running out of nominees to confirm. As of this writing, the Senate Judiciary Committee has only six nominees left to review. Only 17 nominees are awaiting confirmation on the Senate floor, many of whom will be confirmed before the August recess.
In the first half of 2023, with the gift of a true Senate majority, the White House has sent only 29 new Article III nominees to the Senate. At times, the Judiciary Committee lacked enough nominees to hold its customary nominations hearing every other week.
Part of the problem may lie with turnover in the White House. In February, Jeff Zients replaced Ron Klain as chief of staff. Klain was no stranger to the judicial confirmation process. He previously served as chief counsel to the Senate Judiciary Committee when it was chaired by then-Senator Biden, and oversaw judicial nominations during the Clinton administration— including the confirmation of Ruth Bader Ginsburg to the Supreme Court.
Zients, however, is not a lawyer and has no prior experience with judicial nominees. Paige Herwig, described as a “driving force behind” Biden’s “success is diversifying the nation’s federal courts,” announced in May that she too was moving into a different role.
Another culprit may be the dwindling number of vacancies in friendly venues. Under the Judiciary Committee’s customary “blue slip” practice, home state senators have to sign off on district court nominees before the Committee will give them a hearing. Some Republican senators have not shied away from using that unchecked veto power. Of the 58 current and known future district court vacancies without a nominee, only 19 are in states with two Democratic senators, and most were announced only within the last few months.
More problematic are the five vacancies on the powerful US Courts of Appeals, several of which have sat vacant for more than a year. Tenth Circuit Judge Mary Beck Briscoe was one of the first court of appeals judges to retire during the Biden administration, giving the president notice in February 2021. Briscoe is from Kansas, and Kansas has two Republican senators.
Under a precedent set by Republicans during the Trump administration, however, blue slips no longer apply to court of appeals nominees. Still, it took 18 months to nominate federal prosecutor Jabari Wamble to the seat in August 2022. He never had his hearing before the Committee, and when the 117th Congress ended on Jan. 3, 2023, his nomination was returned to the White House. Wamble was later renominated to a Kansas district court seat before withdrawing from further consideration in May. No new nomination has been made.
The process has been just as bumpy in states with two Democratic senators, where three seats remain open without a nominee. Maryland-based Fourth Circuit Judge Diana Gribbon Motz informed the White House in December 2021 that she would retire when her successor was confirmed. When there was no nominee by the end of September 2022, Motz retired early. Ten months later, there’s still no nominee.
New Hampshire-based First Circuit Judge Jeffrey Howard similarly announced his planned retirement in January 2022. It took the White House a year to nominate former New Hampshire Attorney General Michael Delaney. Like Wamble, he too eventually withdrew from consideration. Finally, it’s been five months since New Jersey-based Third Circuit Judge Joseph Greenaway announced his intent to leave the bench in June.
Leaving these seats vacant is no small matter given the close partisan balance on many of these courts. On the Tenth Circuit, Democratic appointees hold a majority by a single seat. On the Fourth Circuit, where Democratic appointees outnumber their Republican-appointee colleagues 8-to-6, there’s more breathing room, but not much. On the Third Circuit, however, Judge Greenaway’s retirement has temporarily tipped the balance in favor of the court’s Republican appointees 7-to-6.
Regardless of cause, time is of the essence in solving this issue. The administration has proven responsive in the past. In July 2022, amid calls to fill every vacancy before the end of the year, the White House announced 25 new nominees—more than enough to keep the Judiciary Committee busy into the fall. It needs to do the same now. As the calendar gets closer to 2024 and the White House and senators start focusing on reelection campaigns, it’s imperative to keep as many highly-qualified, diverse nominees working through the Senate as possible.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Author Information
JP Collins is an associate professor at the George Washington University Law School, where his research focuses on judicial appointments, court administration, and court reform.
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